Honest Opinion

Section 3 of the Defamation Act 2013 sets out a three-condition defence to a defamation claim. The defendant must show that the statement complained of was a statement of opinion (the first condition); that the statement indicated, whether in general or specific terms, the basis of the opinion (the second condition); and that an honest person could have held the opinion on the basis of any fact which existed at the time of publication, or anything asserted to be a fact in an earlier privileged statement (the third condition).

The defence can be defeated even where all three conditions are met. Under subsection (5), the defence fails if the claimant shows that the defendant did not actually hold the opinion. Where the defendant is not the author of the statement — for example, a publisher or platform carrying someone else's opinion — the defence instead fails if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.

Section 3 replaced the common-law defence of fair comment, which the Act expressly abolished: 'The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.' The new statutory defence retains the substance of the old fair comment test but restates it in a more structured form, and clarifies that the factual basis for the opinion can include facts referred to in certain other privileged statements, such as court reports or peer-reviewed academic material.